Congressional Nullification

While most speculation about the upcoming legislative timetable is focused on the prospects for immigration reform, the fast approaching confrontation over annual appropriations and the essential raising of the debt ceiling deserve urgent attention.  

Thanks to an improved budget outlook — with deficits dropping significantly due to sequestration cuts, increased revenues, and economic revival — the day of reckoning for the next increase in the debt ceiling has been put off into the fall.  But House Republicans remain fixated on two unshakeable objectives: massive cuts to domestic discretionary spending, and repeal (or fiscal neutering) of the Affordable Care Act, and they will not hesitate to use the debt ceiling as leverage.  The question is whether they will launch their nuclear options:  a government shutdown over spending levels and defaulting on the debt.

Two years ago, the protracted debt ceiling fight between President Obama and House Speaker John Boehner yielded the massive spending cuts and ultimately, sequestration that have driven down domestic spending by over two trillion dollars. Along the way, as part of the New Year’s Eve fiscal cliff compromise, the President and Democrats won repeal of the top tier of the Bush tax cuts, although they were forced to accept outrageous giveaways like indexing the already absurdly high $10 million estate tax cap.  

Now Republicans are back for more, but the situation is much changed.  With the economy and deficit projections improving, Democrats are loathe to agree to any more spending cuts impacting key domestic priorities.  Absent significant tax reform targeting upper income earners, they are unlikely to agree to significant entitlement changes, although President Obama and some Democratic leaders have indicated they would be willing to consider reforms that strengthen the basic programs.   And yet, Boehner’s Republicans seem incapable of constructing a deal that addresses the combination of tax, spending and entitlement issues, preferring a manufactured crisis over the debt ceiling and a government shutdown. 

That GOP strategy constitutes nothing less than congressional nullification — using the legislative process to deny funding to authorized, lawful priorities that Republicans dislike but lack the votes to repeal.  Historically, nullification was the purview of the states, which challenged the constitutionality of a variety of antebellum statutes.  Now, congressional Republicans are seeking to undermine the implementation of existing statutes which they did not support but cannot repeal.

Their strategy is straight from the playbook of Ronald Reagan who masked his opposition to key programs by slashing taxes and creating massive deficits, and then demanding austerity to remedy his self-inflicted budget crisis.  Reagan’s genius was that, unlike the blunt attacks of his mentor, Barry Goldwater, who called for repeal of Social Security and other popular government programs, Reagan rarely attacked such programs directly; he just regretted that the deficit (which he created) necessitated massive spending reductions.

Today’s Republicans are considerably less gifted than Reagan in their deficit doublespeak, but their intent is the same.  Nowhere is that clearer than in their undying devotion to repeal of the Affordable Care Act (ACA), which the House this week voted to repeal for the 847th time (OK, that is an exaggeration, but only because there aren’t enough days in the year).  Several hard line Republican senators have already told Majority Leader Reid that they will oppose any Continuing Resolution to keep the government operating if it contains funding for implementation of the ACA, which, at last report, remained the law of the land. Count presidential candidate hopeful Marco Rubio among that group of senators threatening to use the filibuster (big surprise there) to delay a CR and shut down the government.  

These nullifiers do not seek to actually overturn the ACA in the way states challenged federal statutes in the 1800s (and 1960s).  They just want to prevent the law from functioning and benefitting tens of millions of Americans who need health insurance. They seized on the President’s recent decision to defer the effective date of one provision of the law — which they erroneously contend to be an admission that “the law cannot be implemented as written” — as a rationale for de-funding the entire statute.  

Republicans are employing other nefarious tactics to sully Obamacare and undermine participation as well. Republican Leader Mitch McConnell recently remonstrated professional athletic organizations that had been asked by the Administration to notify fans how to enroll in the ACA.  On June 28, McConnell and other Republican leaders warned the National Football League, Major League Baseball and other sports associations against encouraging people to sign up for insurance coverage through the health exchanges authorized by the law. 

“It is difficult to understand why an organization like yours would risk damaging its inclusive and apolitical brand by lending its name to [the ACA’s] promotion,” McConnell and the other senators wrote.  Of course, the sports leagues folded faster than the Chicago Black Sox.  It’s only a matter of time before the blustering McConnell chastises those who alert people how to sign up for Medicare and Social Security, two other programs the Republicans would like to see ended.

House Republicans are happily clambering aboard the “let’s flirt with fiscal catastrophe” special which is taking on a resemblance to Newt Gingrich’s counterproductive government shut-down tactics of 1995 and 1996.  Without an agreement on a Continuing Resolution, the government will close on October 1.  This week, House Republicans demonstrated that they are prepared to string out the negotiations – and the potential damage to the economy – by approving bills that follow the nullification-by-defunding design. 

The 2014 bill approved by the Interior Subcommittee of the House Appropriations panel would preclude Obama from using existing law to implement his executive initiatives to reduce greenhouse gas emissions, cutting the Environmental Protection Agency budget by more than one-third; clean water grants would drop by 83 percent.  Other subcommittees are cutting funds for education and enforcement of labor laws. The Securities and Exchange Commission would be cut by 18 percent, handicapping its capacity for investigating schemes that jeopardize individual investors and the national economy. 

Representative Harold Rogers, who chairs the Appropriations Committee, admits his goal is to prevent the President from doing his job.   “His priorities are going nowhere,” Rogers recently asserted.  Budget chairman Paul Ryan sniffed at reports that senators like John McCain and Lindsay Graham may be interested in working out a deal with the White House.  “We are not going to do what they want to do,” the defeated vice presidential candidate declared.

For the moment, it appears that House Speaker John Boehner is casting his lot with the hardliners, as he has in the past, at least at the outset.  In the White House shortly after the 2012 election, the bipartisan congressional leadership met with President Obama and Vice President Biden to address the looming fiscal cliff. 

At the November 16, 2012 meeting, Boehner had signaled that the election results had not diminished his willingness to push the country up to the fiscal cliff.  “We know what has to be done,” he admitted to the President, but “nothing is free in the world.  Everything comes with a price.  We will use the debt ceiling to leverage structural change.”  Obama called on all participants to put the campaign rhetoric behind them and warned that “nothing is more destructive than using the debt ceiling” as leverage, causing Boehner to retort, “I disagree. It’s the debt” that is more destructive.  When the President reminded him that Republican obstructionism and confrontation in July-August of 2011 cost the economy and recovery dearly, Boehner was obstinate: “That’s my price,” he declared.

For good measure, Sen. McConnell, when his suggestions for avoiding fiscal chaos were solicited, advised the President that the election was over and he could stop “strutting around.”

Although McConnell and Boehner eventually folded and accepted the expiration of the upper income tax cuts, the New Year’s Eve deal only passed the House with substantial Democratic support.  Many believe Boehner’s willingness to take such a significant bill to the floor without 218 Republican votes contributed to the surprisingly large number of Republicans who voted against his re-election as Speaker, nearly forcing a second ballot.  Now, with all eyes watching as he maneuvers on taxes, spending, debt ceiling, immigration and other priority issues where he may again have to rely on Democratic votes for final passage, Boehner again is taking the hard line rhetorically.   “We’re not going to raise the debt ceiling without real cuts in spending,” he recently declared, although it is difficult to see how he will secure Democratic votes if he insists on slashing discretionary spending that has already lost over $2 trillion.  For the moment, however, Boehner is cuddling up to the nullifiers who constitute the activist core of his party, knowing full well, as Politico reported this week, “there are loads of GOP lawmakers who are perfectly willing to gamble with default.” 

Facing Down the Filibuster: Strange Parallels

Here’s the scenario: Reed is fed up with the minority’s obstructions, parliamentary maneuverings and delays that prevent the chamber from proceeding with essential legislative business.  For years, he has been imploring his opponents to cease abusing the rules and allow regular floor business to proceed.  He has made some minor modifications to encourage them to abandon their obdurate stonewalling, to no avail.  Now, exasperated with their petulant interference, he is hatching a plan to change the rules to allow floor business to proceed.

Now, before anyone rushes to post a comment correcting my obvious mis-spelling, let me clarify: I am not writing about Sen. Harry Reid (D-NV), but rather Rep. Thomas Reed (R-ME), who like the current Senate Majority Leader, confronted an obstinate minority bent on tying the operations of the House in knots some 133 years ago.

Reed had just been elected Speaker following the successful Republican victory in the election of 1888 defeating, among others Rep. William McKinley (R-OH) who would be elected President in 1896 (with Garret Hobart of Paterson, NJ as Vice President) and 1900 (with Theodore Roosevelt of NY replacing the recently deceased Hobart).  In keeping with the standard of the times, the first long session of the 51^st Congress did not convene for nearly a year after the election, in December of 1889.

Reed already had experience with the misuse of the House rules by the minority.  In 1882, as chairman of the Rules Committee considering whether to seat a newly elected Member, Reed had submitted a report to the Speaker.  That report recommended that the Speaker end the longstanding practice of allowing the minority to offer interminable adjournment motions as a device for extracting compromise..  The minority excoriated Reed, but the modification was accepted and the filibustering of election results ended.

As Speaker himself in 1889, Reed had more expansive goals, ones that would permanently alter the traditional operations of the floor and convert the House into a mostly majority-run institution.  As with Sen. Harry Reid’s current obstructionists, the issue revolved around use of the rules by the minority to delay proceedings and extract compromises.  With a margin of only 5 votes, Reed needed extreme discipline from his own Republicans – not a common trait among House Members at the time – because he could not count on Democrats to support his legislative agenda.

Once again, the immediate fight involved disputed House seats, 17 in all, that could determine control of the House itself.  Democrats were in no mood to make life easy for Reed, and resorted to a favorite minority stall – refusing to vote “present” during quorum calls despite physically being on the floor.  (These days, House Members wishing to avoid tough votes have the luxury of cowering in the cloakroom, as several Republicans did on opening day 2013 when they balked at voting for Speaker Boehner’s re-election).

When all but 3 Democrats remained quiet during the quorum call, leaving Reed short of a proper quorum, the Speaker ordered the Clerk to record as present those Members on the floor who had failed to respond.  Democrats erupted into angry outbursts, as the order altered the quorum rule honored since 1789.  As with Sen. Reid’s proposed rules changes today, one of the loudest objections came from a Kentuckian, Rep. James McCreary, who challenged the towering Reed. “I deny your right, Mr. Speaker,” McCreary told Reed, while standing on the floor, “to count me as present.”  Unamused, Reed noted that McCreary was obviously present and asked the Kentuckian if he was denying so.

The quorum confrontation launched a review of House Rules which was conducted by the House Rules Committee. The Republican majority on that committee consisted of Reed himself and his reliable appointees, McKinley, and future Speaker Joe Cannon, a formidable caucus.

The issue for Speaker Reed (who was thereafter known — not always affectionately — as “Czar Reed”) was the need for the House to be capable of acting rather than vulnerable to being held hostage by a willful minority.  Although his modernizations were condemned as “revolutionary,” and one angry Democrat sputtered that Reed was the “worst tyrant that ever ruled over a deliberative body,” the 51^st Congress went on to pass major legislation, including the Sherman Anti-Trust Act and the McKinley Tariff, that might have been stalled permanently in a narrowly divided House handicapped by the traditional rules.

Regardless of one’s view of the value of those, or other bills that became law following Reed’s reforms, the fact remains that a legislative body is elected to legislate, not to allow an obdurate minority to delay and obstruct.  Reed himself asserted, “The rules of this House are not for the purpose of protecting the rights of the minority, but to promote the orderly conduct of the business of the House.”

Reed certainly overstated the role of the rules; protecting minority rights is enormously important in a legislative body if one has any expectation of bipartisan cooperation.  And he and the Republicans paid a price for their parliamentary and legislative aggressiveness, a stunning defeat in the election of 1890.  But interestingly, the new Democratic majority came to accept most of the Reed Rules and by the time the Republicans regained the House, the reforms were widely accepted.

The parallels to the procedural fiasco playing out in today’s Senate are more significant that the phonetic coincidence of Speaker Reed and Sen. Reid’s names, or the common state residence of Rep. McCreary and Sen. McConnell.  The experience of the Reed Rules illustrates the great dangers the majority faces when tampering with long-established rules that allow the minority wide flexibility to interfere with normal operation of the institution.  But no majority can permit the minority to interfere with even the most ministerial of legislative functions.  The inaction achieved by McConnell’s habitual dilatory behavior is interfering with essential functions of government, which is, of course, his intention: keep judicial seats unfilled, weaken the Federal Elections Commission and the National Labor Relations Board, deny the Environmental Protection Agency an administrator, and many other actions.  And then complain that government isn’t functioning efficiently, and inflame public disdain at Congress and Washington.

There are many risks that would stem from weakening the Senate’s 60 vote filibuster rules; a switch of a few seats, which Reid has miraculously prevented from occurring in two election cycles, could deliver the Senate to Republican hands, and major Democratic legislative achievements would be at risk.  But no reasonable objection should be raised to freeing up presidential nominations from interminable delays that discourage qualified people from seeking appointments.

McConnell talks of the filibuster rule as though it were a sanctified, Constitutionally-protected principle, but in fact, there is no such protection in the Constitution for unlimited debate in the Senate.  There is a tradition, and it should be largely honored; but that doesn’t mean it can’t be abused. Like his Kentucky ancestor, Rep. McCreary, Sen. McConnell may wish he could pretend he wasn’t on the floor and did not bear responsibility for his actions.

NOTE: Earlier this year, I noted that Rep. Rick Nolan (D-MN) was the new record holder for returning to Congress after an absence: 32 years!  Next week, when Rep Ed Markey (D-MA) hands in his House voting card for a senator’s pin, he will (I am pretty certain) be the new record holder for House service prior to election to the Senate – 37 years!  Currently #8 in House seniority, he will become the most junior Member of the Senate.